Cross v. Jaeger et al

Filing 293

ORDER - The court GRANTS Defendant's # 286 Motion to extend time nunc pro tunc. Signed by Magistrate Judge William G. Cobb on 3/24/2016. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANTHONY CROSS,

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Plaintiff,
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vs.
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RON JAEGER,
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Defendant.
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__________________________________________)

3:13-cv-00433-MMD-WGC
ORDER

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The court has reviewed “Plaintiff’s Objection to Magistrate Judge’s Order re Doc. #290.”

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(Electronic Case Filing (ECF) No. 292.) Plaintiff objects to the order (ECF No. 290) this court entered

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concluding Defendant’s motion for extension of time (ECF No. 286) to respond to Plaintiff’s motion

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for sanctions (ECF No. 284) and certain other filings was moot. The court reached the determination

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of mootness of Defendant’s motion for the extension of time after concluding Defendant’s response to

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Plaintiff’s motion for sanctions (ECF No. 287) had been timely filed and therefore an extension was

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unnecessary.

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Upon further review, however, the court finds the Plaintiff is correct in his calculation of the date

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a response to his motion for sanctions should have been filed and therefore the motion for extension of

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time was not moot. When considering Defendant’s motion for enlargement of time (ECF No. 286), the

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court relied on an erroneous response deadline (March 10, 2016) appearing in the Court’s Electronic

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Case Management-Electronic Filing (CM-ECF) system with respect to Plaintiff’s motion for sanctions.

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The undersigned has since learned this responsive deadline is automatically calculated by CM-ECF when

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a “hard copy” document (such as Plaintiff’s motion for sanctions) is scanned into the docket after receipt

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by the Clerk. The deadline should have been calculated based upon the service date contained in the

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motion, not from the date the document was received and scanned into CM-ECF (but such is the nature

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of CM-ECF, a function over which the District’s Clerk has no control). The correct response deadline

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was therefore, as Plaintiff contends, March 3, 2016, not March 10, 2016.

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Thus, the court incorrectly found Defendant’s motion (ECF No. 286) was moot. What the court

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should have done upon receipt of Defendant’s motion for extension is determine whether excusable

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neglect was demonstrated in Defendant’s motion to extend the deadline. Fed. R. Civ. P. 6(b)(1)(B) states

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that when a motion for an extension of time is filed after the expiration of the attendant deadline, as was

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Defendant’s, the resolution of the requested extension is dependent on whether the movant has

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demonstrated excusable neglect.

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The Supreme Court in Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 507

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U.S. 380, 390-95 (1993), adopted a “four-factor equitable test” in determining whether excusable neglect

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exists. Those four factors are (1) “the danger of prejudice” to the opposing party; (2) “the length of the

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delay and its potential impact on judicial proceedings”; (3) “the reason for the delay, including whether

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it was the reasonable control of the movant”; and (4) “whether the movant acted in good faith.” Pioneer,

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507 U.S. at 395; see also Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010);

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Farris v. Ranade, 584 Fed. Appx. 887, 891 (9th Cir. 2014). The court will now retroactively apply those

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factors to the evaluation of Defendant’s motion for extension of time to respond to Plaintiff’s motion

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for sanctions to ascertain whether Defendant’s motion established excusable neglect.

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First, with regard to prejudice to Plaintiff if the motion were granted, the court finds there is

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none. The Plaintiff was able to submit a reply to Defendant’s response (ECF No. 291). Plaintiff’s reply

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memorandum (ECF No. 291) does not suggest he was prejudiced by Defendant’s tardy response. Also,

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the substantive motion to which the requested extension applied,, i.e., Plaintiff’s motion for sanctions

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due to spoliation of evidence, ECF No. 284, had not been decided nor had the underlying dispositive

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motions (ECF Nos. 222 and 231) – to which Plaintiff sought via his spoliation motion to have the court

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apply an “adverse inference” (in favor of Plaintiff’s motion and against Defendant’s motion).

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Second, with regard to the length of the delay, the time period between the date requested for the

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extension (March 10, 2016) and the date the response was due (March 3, 2016) was only seven days. As
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noted above, this extension had and has absolutely no impact on the judicial proceedings, including

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Plaintiff’s motion for sanctions and/or the dispositive motions.

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Third, regarding the reason for the delay, i.e, that Defendant’s counsel was out of the country

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from February 22, 2016, through March 7, 2016 (returning to the office on March 8), the court finds the

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explanation for not filing either the Defendant’s response, or an earlier motion to extend time to respond,

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to be excusable. This analysis of the third component also covers the fourth factor identified by Pioneer,

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Ahanchian and Farris, i.e., whether the movant acted in good faith. The explanation found in

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Defendant’s motion (ECF No. 286) establishes the requisite good faith.

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Therefore, the Pioneer factors have been satisfied. In retrospect, Defendant’s motion presented

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satisfactory grounds for an extension of the time to respond to Plaintiff’s motion for entry of sanctions.

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The determination of whether an act or omission constitutes excusable neglect “is at bottom an equitable

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one, taking account of all relevant circumstances surrounding the party’s omission.” Committee v. Cost,

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92 F.3d 814, 925 (9th Cir. 1996) (citing Pioneer, 507 U.S. 380). The decision is "entrusted to the

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discretion of the district court because the district court is in a better position ... to evaluate factors such

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as whether the lawyer had otherwise been diligent, the propensity of the other side to capitalize on petty

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mistakes, the qualify of representation of the lawyers ..., and the likelihood of injustice if the [filing]

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were] not allowed." Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004).

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Resolution of matters on the merits of the cases are preferred. See e.g., In re

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Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1222 (9th Cir. 2006). In this

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respect, the court anticipates that Plaintiff’s motion for entry of sanctions due to spoilation of evidence

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(ECF No. 284) will be denied. The sanctions Plaintiff seeks to impose upon the Defendant arose because

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the Nevada Department of Corrections (NDOC), which is not a defendant in this action, was unable to

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produce an organizational chart Plaintiff had requested from NDOC. (ECF No. 284.) But as Plaintiff

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himself recognizes, the Defendant was not personally involved in the disposition of this “evidence” (the

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relevance of which is tenuous at best). Plaintiff’s rationale that sanctions are justified because the

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Defendant and the “Public Information Section” of NDOC are “both employed by the same state agency

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(NDOC)” (ECF No. 291 at 2), does not provide a basis for sanctions for spoliation against Defendant

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Jaeger. Therefore, because the merits of Plaintiff’s motion are not well-founded, the court would not be
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inclined to disallow the requested extension to instead address the resolution of Plaintiff’s underlying

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motion for sanctions on its merits, as the court will do in the near future.

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Therefore, although the court’s order determining the Defendant’s motion for extension of time

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as moot to have been erroneously entered, nevertheless, sufficient grounds exist to have previously

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granted Defendant’s motion upon application of the factors pertaining to excusable neglect.

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Accordingly, the court GRANTS Defendant’s motion to extend time (ECF No. 286) nunc pro tunc.1

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IT IS SO ORDERED.

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DATED: March 24, 2016.

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____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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This Order should not be interpreted as a disposition of Plaintiff’s Objection (ECF No. 292).

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